Public Bill Committee

[Miss Anne Begg in the Chair]

Clause 14

Use and disclosure of customs information

Amendment proposed (this day): 9, in clause 14, page 10, line 7, at end add
(8) Nothing in this Act shall enable any of the officers designated under this Part to use any personal data of UK citizens to restrict their right to enter or leave the United Kingdom for legitimate purposes..(Damian Green.)

Question again proposed, That the amendment be made.

Phil Woolas: It is a pleasure to serve under your chairmanship, Miss Begg, on this important Bill.
Amendment 9 would prevent a designated customs official from using the personal data of a United Kingdom citizen to restrict that citizens right to enter or leave the UK where there is an apparently legitimate purpose for the journey. In other words, the amendment tabled by the hon. Member for Ashford probes the circumstances under which UK Border Agency officials could stop a legitimate journey by a UK citizen, and the nature of the information that could be used to apprehend or inspect a person.
The provision is an essential tool in support of law enforcement and is key to the agency being able to secure the optimal deployment of its resources across all of its functions. However, the hon. Gentleman may be reassured to know that the provision is subject to any restriction or prohibition on the disclosure of information imposed in part 1 or in any other enactment or agreement to which the UK is party. Those restrictions and prohibitions will be particularly important for personal customs information.

Tom Brake: I would like a little more clarification on the circumstances in which action could be taken. One can clearly understand the case of a terrorist to which the Minister referred, but what level of offence is covered by the provision? Is non-payment of a parking fine something that might lead to action? Will he clarify the level at which the provision will be enforced?

Phil Woolas: The hon. Gentleman raises a good point, which was also made in the other place. The information to which I refer is customs information, but he refers to a wider point, which is very valid but is outside the clauses scope, relating to information from watch lists activity. Parking or speeding offences are certainly not covered, otherwise I imagine that the immigration Minister would be in serious trouble at this point in timealthough perhaps not at another point in time. More seriously, the watch lists relate to the criminal watch lists from our security forces, but they do not relate to the aspect of information under discussion. The hon. Gentlemans point is valid, but it is not directly relevant.

Damian Green: Welcome to the Chair, Miss Begg. I would like to pick up on the point made by the hon. Member for Carshalton and Wallington. It is ironic that he used the example of parking fines. Perhaps he, like me, has spent part of the past couple of hours looking at the ID card statutory instruments that we will debate next week in which the Department for Transport is specifically mentioned as one of the Departments that, if the provisions are passed, will be able to use information from ID cards for its own purposes. The Minister is right that the hon. Gentlemans point may not be directly relevant to amendment 9, but the hon. Member for Carshalton and Wallington is spot on that the Government plan to collect private information about people and then use it to perhaps enforce things such as parking fines. I suspect that the Minister and I will conduct that debate next week.
The Minister has sought to reassure me about clause 14. I should point out, again in relation to the intervention by the hon. Member for Carshalton and Wallington, that amendment 9 specifically mentions
officers designated under this Part to use any personal data of UK citizens,
so the clause does not cover customs information only. Just before lunch, the Minister said that he felt my argument had a weakness because it suggested that the police could not be engaged by immigration officers. If we had not been interrupted, I would have replied that he was making an ideal argument for a unified border police force. In the case he specifically advanced of an anti-terrorist operation the police would be involved and therefore the powers would be police powers. At that point, his argument falls, inasmuch as it has validity; it is precisely an argument for a border police and for those police powers and all the police training to be available to a wider set of officers than is currently the case.
As we have said several times over the course of day, this is a debate for another time later in Committee. I am not entirely convinced and reassured by the Ministers arguments. The powers given for using and disclosing information in this clause are potentially dangerous. Not unfairly, he pointed to other clauses where there is a prohibition on disclosure of personal customs informationfor example, the next clause that we will discuss. Nevertheless, many of those are hedged around with restrictions, for instance in clause 17, that the information cannot be disclosed
without the consent of a relevant official (which may be general or specific).
The intent that there can be a general permission for the disclosure and use of private information infuses a lot of the Bill. That is dangerous. We will return to similar issues, especially consent, when we discuss the next group of amendments. Although I will not withdraw the arguments that lie behind it, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 14 ordered to stand part of the Bill.

Clauses15 to 19 ordered to stand part of the Bill.

Clause 20

Supply of Revenue and Customs information

Damian Green: I beg to move amendment 10, in clause 20, page 14, leave out lines 19 and 20.

Anne Begg: With this we may discuss the following: amendment 11, in clause 20, page 14, line 25, leave out
consent (which may be general or specific)
and insert specific consent.
Amendment 12, in clause 20, page 14, line 29, after relates, insert exclusively.

Damian Green: This is a new set of amendments in that they were not debated in another place. This is very much a continuation of our previous debate in the sense that we are seeking to achieve much tighter controls over the use and disclosure of customs information. This is one of the most serious weaknesses in this part of the Bill. We have all agreed that we are in favour of the principles behind it, but the problems with the clause illustrate both the practical and principled difficulties of moving in such a direction. There are a number of key questions that the Bill, as it stands, fails to address satisfactorily for us to avoid any abuse of the important personal data that will be shared between people.
The Minister knows the sorts of questions that are likely to be asked. Who will hold the data, for a start? Will they be held entirely inside UKBA or HMRC, or will they be held by private contractors if the data management is given to them? Will important personal data be held outside this country, as we have seen in some cases? There is no reason in principle why that should be any more or less secure than data held in the country, but is he aware from previous problems that when data that have been stored outside this country go missing, people feel even less secure than they do when they discover that they have been lost here?
Another important set of issues relates to proportionality. Are the data collected worth collecting in terms of the rewards that will come from the successful use of them? There can always be arguments along the lines of, Well, if it helps to stop one serious criminal and solve one case, then it is worth while, but we need to have a debate at a slightly higher level than that, and suggest that we introduce some kind of test of proportionality about the widespread collection and retention of important personal data.
The other issue that I hope the Minister will address is cross-referencing. In many ways, that is at the heart of the group of amendments and of the wider issue, about which my party and I feel very strongly. Across Governmentmore specifically, across the Home Officemany databases are being set up, each of which contains peoples most private and personal information. They are gradually being linked with each other. If the Minister has his way, the heart of the scheme will eventually be the national identity register. But even without that, there will be nothing left that cannot be collected by the Government and switched from database to database, searched by other parts of the Home Office and Government. He will recognise the genuine and increasing public alarm at that. Although each individual database may be justifiable in some sense, it is the aggregation of all the information that rightly causes people to be increasingly concerned.
We want our amendments, particularly amendment 11, to be accepted so that they challenge that whole process and start reversing it. For example, amendment 11 would remove the phrase
consent (which may be general or specific)
and insert specific consent, which would exert much more control over what can happen to the data. Amendment 12 talks about exclusively relating to the information. Again, that would narrow the field where activity may happen. We also suggest leaving out subsection (2)(b), so removing the Secretary of State from the clause. We are seeking to ensure that any onward disclosure of personal information is approved by the individuals concerned.
I dare say that the Minister will argue that that kind of principle cannot be applied to criminals, as we need to be able to chase them. My responsewhich goes to the heart not only of this argument, but a lot of other argumentsis that the problem is that everyone in the country is now a suspect. Every individual is now being treated as though they are a potential criminal, and the gains for fighting crime that we might get from that approach are outweighed in the long run by the losses of turning every citizen in the country into a potential suspect, and treating them as such through the collection, dissemination and cross-referencing of information by the Government.
All of that would be true, and I would argue it just as strongly, even if I believed that the databases were 100 per cent. accurate and secure. However, the arguments that I advance are much stronger given the situation we are in, as we know that any large database inevitably contains a huge number of errors. Furthermore, as has been dramatically illustrated many times to the general public, none of those databases is particularly secure.
The Government, and some private operators, have an appalling track record when it comes to storing and securing personal data. Every breach of data security not only endangers the privacy of the individuals concerned, but inevitably costs the taxpayer thousands of pounds in investigations, internal reviews and potential litigation. If someone were to look at the matter dispassionately, they would ask whether the British state is the sort of body that should be allowed to collect and disseminate large amounts of private information. If the state were a private company that had to obtain a licence to do that sort of thing, it would have lost its licence by now as it is simply not fit to do it.
Last November, the Prime Minister said, in what I thought was a moment of blinding candour:
We cant promise that every single item of information will always be safe.
He is rightpracticality tells us thatbut he does not go on to think about whether we should be collecting all that information and whether, through this part of the Bill, we should be allowing ourselves to collect information and supply it around the Government.
This is not a general complaint, it is specific to HMRC and some of the people who now work in UKBA and whose powers we are extending. November before last, the Chancellor of the Exchequer had to reveal that HMRC had lost two discs containing the names, addresses, bank accounts and national insurance numbers of 25 million people. That was probably the most dramatic and damaging of all the data losses. Beyond that, the personal details of thousands of criminals have been lostthe names, addresses, details of conviction and even the jail release dates of 130,000 criminals were lost when a computer memory stick went missing. It was being used by an employee of PA Consulting, the firm at the heart of the identity card plans.
The Department for Transport has already featured in our debate, and the Driver and Vehicle Licensing Agency lost the details of 3 million learner drivers after a computer hard disk went missing. Perhaps worst of all, last year we discovered that the Crown Prosecution Service had lost a disk containing more than 2,000 DNA profiles received from crime scenes in the Netherlands for over a year.
Even when fighting crime, and introducing the sort of measures that the Minister will argue that the legislation is about, we cannot have much confidence in the Governments ability to use efficiently the vast amount of private information that is being obtained to fight crime. There are many other examples with which I will not weary the Committee.
I hope that the Minister recognises the principle behind our argument. We should not simply be allowing ever-increasing amounts of data to be collected and ever-wider numbers of individuals or institutions within Government to pass that information between each other, without proper checks and without, at the very least, specific knowledge of why they are doing it, who is allowed to do it and who is allowed to give consent for it to be done. A couple of our amendments have concentrated specifically on that last point. General permissions should not be given such that whole classes of people can start exchanging the private information of British citizens. If there is a specific reason to do it, that is arguable, but specific, not general, consent has to be necessary.
As I observed in one of our debates this morning, it is easy for people to make general points about how Parliament should act in better ways to uphold the privacy of individuals in this country. It means, in practical terms, that we must get to the heart of the legislation to see whether another piece of the protective undergrowth is being cleared by small, apparently innocuous, parts of the Bill, which do not appear to be very much to do with personal privacy, and stop that happening. We are seeking to do that with our three amendments. I hope that Members on both sides of the Committee who actually care about privacy and the ability of people to keep information about them private will recognise the strength of the arguments behind the amendments.

Tom Brake: I fully support the amendments, and their intention to introduce tighter controls on the use and disclosure of information. Miss Begg, you will not have heard this mornings deliberations on databases and so on, and I will not bore other hon. Members who have heard them at length today and on other occasions, but clearly there is an issue about the creation of very large, centralised databases and the control, security and disclosure of data. The amendments would ensure that specific consent is sought, or that the data relate exclusively to an individual and would thus tighten up the procedures.
I shall digress briefly. This morning, many Members may have heard a story about mobile phones. At some point in the past, perhaps in response to a market research questionnaire, people may have failed to tick a box to confirm that they were not giving consent to having their mobile phone number held in a central directory. People who missed that box then found that their mobile phone number was available through that central directory. There are some similarities in flagging up the fact that consent may have been sought in relation to a specific exchange of data, rather than generalised consent that was given in the pastperhaps in circumstances slightly different from those that prevail nowand which has been forgotten about. Unless the Minister can give some strong reassurances that the amendments would serve no purpose, we may well be supporting the hon. Member for Ashford in his venture if he pushes his point harder.

Phil Woolas: We seem to have come to a controversial part of the Bill, or at least to a controversial argument. The problem is that the argument is not about the clause. The clause is not about databases. It is about what permission HMRC and the Revenue and Customs prosecution officers need so that they can give customs and immigration officials information and what those officials need to give information to other agencies, such as courts.
Let us remember that the purpose of consolidating the existing powers in the new agency is to fight crime. By extrapolation, a police officer may have access to the fingerprint of a criminal. If my customs and immigration officials have apprehended someone they suspect, for customs and immigration reasons, to be a criminal, they would be allowed to share information with the police. The provision is about fighting crime, not about a Big Brother database. Indeed, we have added measures to existing powers and to the Bill to protect against such things as the hon. Gentleman is reasonably worried about.
I accept the point that, with technology, there could be creeping, unintendedif you take a different view, intendedinterference in peoples privacy. I respect that point of view, but let me outline what the provision is trying to do and is doing, and not what it is being accused of doing. The danger is that we tie the hands of our officials so much that they do not have access to the intelligence information that they need to do their jobs. Our constituents would not forgive us if we were to get that balance wrong.
Sections 40, 41 and 42 of the UK Borders Act 2007 set out the confidentiality framework applied to the use and disclosure of information that is provided by HM Revenue and Customs and the Revenue and Customs Prosecutions Office. That legislation has been debated and passed by the House. Clause 20, the amendments to which we are debating, introduces two new sections for insertion after section 41 of the 2007 Act. The clause enables Revenue and Customs and the Revenue and Customs Prosecutions Office to disclose customs information, including a relevant document or article, to a designated customs official; to the Secretary of State by whom general customs functions are exercisable, or, in practice, their officers; or to the director of border revenue orin practicea person acting on their behalf for the purposes of the customs functions exercisable by them. The clause permits disclosure of customs information to the Secretary of State for his newly acquired customs functions and enables staff who currently work for HM Revenue and Customs, but will soon transfer to the UK Border Agency, to continue to receive relevant information for the discharge of their customs functions.
The clause also sets out the specific circumstances in which those who receive customs information supplied under the proposed new section 41A of the UK Borders Act 2007 may themselves disclose it to a third party, such as a court official. Wrongful disclosure of such information to a third party will be subject to the criminal sanction prescribed in section 42 of the 2007 Act. That critical assurance, which was sought in the debate on the 2007 Act, transfers to the Bill as well.
We believe that the agency must have the ability to use information that it receives from HMRC and the prosecutions office in order to do its job properly. There will be times when the agency needs to disclose information for the purposes of civil proceedings to ensure that it can fully carry out its customs functions at the border. That could, for example, include disclosure to the VAT and duties tribunal in the exercise of its customs revenue functions in relation to the export of goods from, or the import of goods to, the United Kingdom. That means that if the officers are aware of or believe there to be a transgression of VAT duty payment, they should be entitled to tell the tribunal. I do not see that as an infringement, but as a necessary civil law enforcement function.
Those key functions of the agency need to be protected. While such disclosures could arguably be made on occasions under proposed new section 41B(2)(a) of the UK Borders Act 2007, that would not always be the case. It is important to ensure that there is a clear and unambiguous power to make disclosures for civil proceedings, including those before the tribunal. Amendment 10 would cast doubt on the ability of UKBA to match such disclosures and would therefore have a negative impact on the ability of UKBA to do its job.
The position under amendment 11 would be similar. Revenue and Customs and UKBA will work closely together in the discharge of their respective functions. In particular, the agency will work with the Revenue and Customs prosecution officers in taking forward relevant criminal proceedings. Information sharing will be integral to that process, just as it between the police and the Crown Prosecution Service.
The ability to share information under the 2007 Act, in accordance with general consents given by HMRC or RCPO, will not lead to unrestricted data sharing but, rather, will enable a class of relevant information to be shared where that is appropriate. It would be impractical and hugely resource-intensive if, as amendment 11 requires, HMRC had to provide specific consent each and every time they supplied information to a person under section 41A of the 2007 Act. It would be paperwork. It would be form-filling. It would be tying up in unnecessary work the hands of the officials we are asking to protect our revenues and our borders. Amendment 11 is neither realistic nor desirable.
Lastly, it seems that amendment 12 is intended to clarify the fact that information may only be disclosed under proposed new section 41B(2)(f) of the 2007 Act when the person wishing to disclose it has the consent of the person to whom it exclusively relates. I want to assure the Committee that this is precisely the effect of the current drafting and reflects the existing practice of HMRC, RCPO, the Home Office and the agency, so the amendment is unnecessary. Although it is arguable that disclosure of information for civil proceedings would sometimes be possible under the new sections of the 2007 Act, that would not always be the case. Further, the inclusion of an express power to disclose for the purposes of criminal proceedings could cast doubt on the ability to disclose for the purposes of civil proceedings in the absence of an equivalent express power to do that.
The power to disclose HMRC information for the purposes of civil proceedings, whether in the UK or not, mirrors provisions in section 18 of the Commissioners for Revenue and Customs Act 2005, which enables HMRC to do their job. In short, the amendments arise from concerns about the integrity of databases and the purposes to which they are put. The clause is about the very pragmatic instances when our officials share information in order to apprehend crime or potential crime, whether civil in the case of duties, or crime in some of the customs functions. It is also about the ability of the agencys officers to share that information with the justice system. In that respect, I believe that the amendments are a red herring, important principles though they raise.

Damian Green: The Minister slightly gave it away in his last remarks when he talked about apprehending crime or potential crime. That is another of the catch-all phrases that Ministers have taken to using to justify ever-increasing intrusion. The potential to apprehend potential crime and to give the state the power to do that requires very severe restrictions, checks and transparency of the type that is not available. Every transaction is a potential crime according to that mindset. Ministers always come down on the side of, If it might prevent a single crime in the future, then lets do it. Lets take these powers. Lets exchange this information. Lets give more people the power to access this information. In a sense, I suspect that there is no point our debating the matter. We just disagree. I think it is a dangerous way for the Government to operate.

Phil Woolas: The hon. Gentleman is painting a picture. We are talking not about customs and immigration officials being judge and jury, but about law enforcement. Just as a police officer needs access to intelligence about fingerprinting, say, to investigate a crime, if a customs official is faced with a bloke with a bag full of cocaine it might be useful to know from Revenue and Customs whether he owes money on a big tax bill. That is not being judge and jury; it is law enforcement investigation.

Damian Green: But if he is in front of the officer with a bag full of cocaine, he will be arrested anyway, so that is not a particularly powerful example.
The Ministers basic point is that this is just about law enforcement, not databases. However, in practice, these days, any collection of personal information and data is about databases, because all the information collected under the clause will end up on a database. That is what the databases are for and that is why the data are collected. I am afraid that that is relevant. All the points that were made about the security of those databases and the ability of people to cross-reference databases are relevant to a clause such as this one in a Bill of the type that we are discussing.
The Minister said that he was worried about mealthough he did not use the word paranoid, I think he thought thatbeing concerned about things being slipped through. I am fascinated by proposed new section 41B(1) and (2)(b), under which,
A person to whom information is supplied under section 41A may not disclose that information...But subsection (1) does not apply to a disclosure...which is made for the purposes of civil proceedings (whether or not within the United Kingdom).
That is a powerful exemption that applies to any civil proceedings anywhere in the world, and that means that the protection that is written in does not apply. The Minister has yet to convince me that, without protection, that sort of exemption to the protection does not drive a coach and horses through his arguments about the provision being proportionate or, in some ways, necessary for crime fighting. By definition, civil proceedings do not involve criminal offences; otherwise, they would be criminal proceedings, which are covered in another part of the same clause. That is why we tabled amendment 10.
It is significant that much of the Ministers response was about how the provision makes life easier for the institutions concerned to do what they do. I am sure that that is true. But overriding that should be the convenience of the citizens of this country, the vast majority of whom are not criminally inclined, are not going to smuggle stuff across the border and will not break immigration rules. The Minister and I disagree on a point of principle relating to where the appropriate balance is struck between personal freedom and personal privacy in this country and the ability of the organs of the state, including the law enforcement agencies, to do their job with what they would regard as the minimum fuss.
I am sure the Minister will be pleased to hear that I accept his point about amendment 12. If he assures me that what is in the Bill is not altered and strengthened in any way by the addition of exclusively, I am happy to accept that argument. Nevertheless, I do not accept his arguments on amendments 10 and 11, which I propose to put to a vote.

Paul Rowen: I have been listening carefully to the debate and I understand what the Minister is trying to achieve. However, as the hon. Member for Ashford said, the clause grants the ability to disclose information in respect of any civil proceedings. Were the Minister to define that, perhaps in a separate statutory instrument, and to say under what circumstances and for what purposes such information would be made available, he could reassure Committee members. That might be a compromise way forward that might reassure those of us with severe concerns about the overarching nature of the disclosure that the clause seeks to grant customs officials.

Phil Woolas: I think I understand the hon. Gentlemans point. There is not an overarching power; the Bill transfers what is currently the provision. A real case that came across my desk a few weeks ago provides a typical example of where information may be passed over. Cash had been found in someones suitcase at Luton airport and information was disclosed to a customs official that the person was wanted for alleged criminal activity and alleged tax avoidance. One must strike a balance. I cannot comment on the individual case too much.
If a legitimate activity is being undertakensuch as travel with an amount of cashbut there is reasonable suspicion that a persons intent is either criminal, or civil if it relates to VAT and duties, it seems perfectly reasonable that the official should have the power to share information. That is not the same as the picture painted by the hon. Member for Ashford. He has had the good grace to say that it is a question of balance and I accept that. The next time someone from a tabloid newspaper phones up and says, Why did the officials at UKBA let that person go? I hope he will have the honesty to say that it was because he disagreed with the balance. That is the reality of the work that my officials do.
I do not accept the argument that there is a new power, new database or a new infringement or interference in anybodys privacy. These are transfers of powers. I throw his argument back at him. If we were talking about a border police force, would he not want that police force to have these sorts of powers? Of course he would; otherwise, it would not be a police force. The House is right to scrutinise and investigate but we should get the balance right and give our officials the powers that they have already, and that they need under the new structures, to do their job to protect us.

Question put, That the amendment be made:

The Committee divided: Ayes 7, Noes 9.

Question accordingly negatived.

Amendment proposed: 11, in clause 20, page 14, line 25, leave out consent (which may be general or specific) and insert specific consent.(Damian Green.)

Question put,That the amendment be made:

The Committee divided: Ayes 7, Noes 9.

Question accordingly negatived.

Clause 20 ordered to stand part of the Bill.

Clause 21 ordered to stand part of the Bill.

Clause 22

Application of the PACE orders

Damian Green: I beg to move amendment 13, in clause 22, page 17, line 25, at end add
(10) In the application of PACE orders by virtue of this section
(a) no person may be detained in an office of the UK Border Agency which has not been designated as a police cell for a period exceeding three hours;
(b) no person may be detained in a police cell under powers granted to the UK Border Agency for more than five days..
The purpose of the amendment is to enable us to have a serious discussion about the application of the rules under the Police and Criminal Evidence Act 1984 because they are to be extended. In the last knockings of our previous debate, the Minister said indirectly that a lot of what is happening in this part of the Bill involves extending police powers to non-police officers, so we must carefully consider the extension of the protection from police action that we provide under PACE. We seek in the amendment to make specific suggestions, and to open up that area of debate. The Minister and I agree that the protection and powers that are given to the police under PACE must be carefully considered if they are to be extended to officers who have their own competences but are not police officers.
We suggest that no one should be detained in an office of the UK Border Agency that has not been designated as a police cell for a period exceeding three hours, and that no person may be detained in a police cell under powers granted to UKBA for more than five days. There is a degree of consensus about the need for a code of practice and strict guidelines about what happens to those who are kept in short-term detention under the terms of the Bill. When somewhere is designated a police cell, different rules apply, and it is worth discussing the wider point and whether the application of PACE powers to all customs officers is necessary and desirable. I hope that the Minister will address that large number of issues when he responds.
As the Minister and the Committee know, PACE and the accompanying codes of practice provide the core framework for police powers and safeguards in all police activities that are being adopted by UKBA officersstop-and-search, arrest, detention, investigation, identification and interviewing detainees. The eight codes of practice cover the range of powers and are directly relevant to the powers given by this clause, ranging from the initial arrest or stop, the search of premises, the requirement for detention and treatment, and recordings. It is not new for PACE powers and restrictions to be given to immigration officers; that has been happening since the Immigration and Asylum Act 1999. The Minister will be aware that there has been great and legitimate debate about the extent to which those powers have been exercised and he will know that interested parties, such as the Immigration Law Practitioners Association, the immigration lawyers lobby group, argue that the powers under PACE have been underused. It argues, and I am not sure that I would go all the way with it on this, that the powers should be supported by a duty to use them. That is worth discussing, but I am not suggesting it with this amendment.
It has been suggested that the Ministers undertaking to make orders under the 1999 Act did not go far enough. Other bodies, such as the Equality and Human Rights Commission, have said that there are potential human rights implications by leaving that in the Secretary of States discretion. The Joint Committee on Human Rights has also welcomed the application of the PACE safeguards to investigations conducted and persons detained by immigration officers and customs officials, although the Committee said that they thought that the Governments intentions were still more limited than they would have liked.
There is a lot of outside unease and suggestions have been made about how to balance the enforcement capacity, which needs to be effective, and the protection of those being detained. The Minister will be aware that the Government proposed amendments to clause 22 in the other place. Those would have applied PACE and the equivalent order for Northern Ireland to designated customs officials who exercise equivalent functions as HMRC officials. The Governments amendment allowed certain safeguards contained in the orders to apply to criminal investigations conducted by immigration officers and customs officials in relation to a general customs or customs revenue matter and to the persons detained by such immigration and customs officials. To an extent, so far so good, and that was welcomed in the other place. The problem is that the effect of those Government amendments to clause 22 has been diluted by including the ability to amend or repeal the clause by order under clause 23, which gives a broad power to disapply the safeguards contained in the HM Revenue and Customs order.
Liberty, among other organisations, suggests that the improvements and more have been washed away by that wide-ranging power. The safeguards provided by PACE therefore are now not adequately reflected in the Bill. Liberty says that they would not be aware if the Secretary of State had applied the safeguards in PACE to immigration officials. It argues, and I would like to hear the Ministers response to this:
Giving the Secretary of State only the power to apply PACE provisions is unsatisfactory where the extension of intrusive powers is proposed. If this reform goes ahead, at the very least, a requirement for PACE protections must be fully incorporated into primary legislation.
It is a debate worth having now, although we can consider it at other stages. Liberty has given evidence to the Home Affairs Committee expressing its concerns about extending traditional policing powers to non-policing bodies. I am pleased that even Liberty says that
sometimes that may be necessary in a certain context,
because it is necessary in a certain context. Those of us who have argued for greater coherence in our border enforcement agencies have to accept that point. However, if we extend powers that were once available only to the police, the safeguards that we impose on the police need to be imposed on other peoplethe Minister is looking perplexednot just at the discretion of the Secretary of State, but permanently. It is not about the current Secretary of State; essentially, the argument is about whether to trust any Secretary of State to be the guarantor of the protections that one would want.
I draw the Ministers attention to another point made by ILPA about aspects of short-term detention covered by clause 22 and the need for a clear code of practice. ILPA argues that turning police cells that are used occasionally to detain people under immigration powers into short-term holding facilities for the purposes of the immigration Acts could have bizarre and unwanted consequences. The short-term holding facilities are meant to have visiting committeesindependent monitoring boardsand specific rules that apply in all such facilities, regulating such things as management and the welfare of detainees. ILPA points out that custody sergeants will not welcome their cells being bound by such rules. If the rules do not apply to those held in such facilities, to whom do they apply?
Like me, the Minister will have read the Lords debates carefully and will be aware that his equivalent, Lord West, said that either he was confused or the position was confusing. The noble Minister was right in his analysis: the position is confusing. He wrote a letter, but it did not appear until after the Lords Report stage, so this is the first chance that either House has had to debate the issue properly. I am conscious that the Government want the flexibility to hold people in short-term holding facilities, particularly under customs powers. However, as it stands, the legislation has wider consequences than have been considered, certainly wider than those considered in another place. There is a large fog of confusion that I hope the Minister can dispel.
To avoid the possibility of adding to the confusion, let me be clear: we do not object to the extension of PACE to officers, but we are concerned that the officers should be in the position of the police, which, effectively, they are. We know that PACE already applies to immigration officers because they have the power of arrest. Therefore, as we are extending the power of arrest to others, PACE should apply as well. That safeguard ensures that people are dealt with properly and protected by codes of conduct and practice. It is about balance. It is a Pandoras box: the lid has been lifted and some fairly unusual and potentially unpleasant things are flying out. Yet again, I seek ministerial reassurance on all of that.

Tom Brake: I welcome the opportunity to debate an area of the Bill that we have not touched on so far. Amendment 13 refers to the application of PACE orders in relation to UKBA activities and also the period of detention. On the latter point, as the hon. Member for Ashford has set out on behalf of the Conservatives, there clearly was a great degree of confusion around the period of detention. As he stated, the matter was not resolved until after the passage through the House of Lords and the letter that was provided by Lord West of Spithead, which I imagine Members have seen. It underlines exactly how complex the situation is in relation to detention, and one must have concerns about the ability of those who will be required to manage the system to ensure that matters are followed appropriately. The flow chart that was provided at the end of the letter is of some assistance in working out what applies where. Other Members may have seen it; the split between PACE and not-PACE activities is identified. I suspect that the complexity remains.
As the hon. Member for Ashford said, the application of PACE is entirely appropriate in the circumstances in which immigration officers will be working. I am sure that other members have received ILPAs briefing. Back in 1999 Lord Williams of Mostyn promised us that PACE codes of practice would be adapted and introduced to cover immigration officers in the exercise of their police-like powers. However, I think it is true to say that we still await that. This is clearly an opportunity to debate it and perhaps secure from the Minister some promises about the circumstances in which PACE will apply and what further extensions he may be considering.

Phil Woolas: I am very grateful for an interesting debate sparked off by reference to Lord Williams of Mostyn. I congratulate the hon. Gentleman on that point. Let me give him the reassurances that he seeks and answer the questions that have been raised in the debate.
Let me set out the Governments intent regarding clauses 22 and 23. We have to look at those together. Should the House give Royal Assent to the Bill, clause 22 ensures that PACE protections transfer immediately to UKBA and specifically those customs officers within it. Clause 23 allows the creation in future of a comprehensive framework for UKBA, including immigration. Clause 22 currently creates the framework only for designated customs officials transferring to UKBA. In other words, that is a power that is already there for customs officials upon formal transfer to the agency. If the House accepts it, clause 22 provides that cover for designated customs officials. Clause 23 sets up the longer-term framework. We have to see the two in that regard.
Let me outline the purpose of the clause and the difficulties we have with the amendment, and then briefly answer the specific questions. As has been said, we are talking about the Police and Criminal Evidence Act 1984, and for Northern Ireland the Police and Criminal Evidence (Northern Ireland) Order 1989which I will call PACE (Northern Ireland)and the associated codes of practice that come with them. Many of those provisions in PACE and PACE (Northern Ireland) are already relevant to the exercise of criminal investigation functions by officers of Her Majestys Revenue and Customs. Those provisions are applied, in appropriately modified form, to any criminal investigation and to any person detained by an officer of HMRC. That is achieved by means of the Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2007in other words, the House has already looked at that point for the situation inside HMRCand the Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order (Northern Ireland) 2007. For the purposes of the debate, I shall call these orders the Revenue and Customs PACE orders.
The provisions applied to HMRC officers include powers used for the investigation of revenue and customs offences at the frontier and elsewhere, and for the designation of custody suites and custody officers. They also impose relevant obligations on officers to safeguard anybody that they detain, as one would expect. Of course, we need to ensure that, as the designated customs officials of the border force will in future be investigating and detaining people for the same offences and exercising the same functions at the border as officers currently do for HMRC, they have the same powers and are required to provide the same safeguards to those that they detain.
Therefore, it is our intention that the substantive provisions of the Revenue and Customs PACE orders should apply in future to criminal investigations of customs matters conducted, and persons detained, by the designated customs officials of the UK Border Agency. However, clause 22 does not apply all the provisions in the Revenue and Customs PACE orders. Some of them, such as the powers relating to production orders in tax investigations, will not be required by UKBA, so it would not be appropriate to apply them.
In summary, clause 22 effectively applies the vast majority of the provisions of the Revenue and Customs PACE orders to criminal investigations and to persons detained by designated customs officials of UKBA, who will in future exercise enforcement functions in situations of the type where those functions are currently exercised by HMRC.
We intend that there will be a seamless application of PACE to the designated officials, particularly those who are transferring over, until a further bespoke PACE application order is made directly in relation to UKBAs customs and immigration functions, under clause 23 of the Bill.
Regarding the amendments that have been tabled, I again want to congratulate the hon. Member for Ashford on his powers of scrutiny. The situation is that UKBA has, of course, a dual function, to tackle criminality and to regulate immigration. It uses criminal powers to arrest and administrative powers to detain. Limiting to three hours the period for which a person may be detained following arrest would prevent the agency from dealing with straightforward cases in the most effective manner, which would add costs for transporting prisoners and create an additional burden on local police stations in a way that I suggest Members of Parliament would not wish to see. It would also create an unjustifiable inconsistency with other law enforcement bodies, such as Revenue and Customs or the police, in respect of persons detained following arrest in identical circumstances under the provisions of PACE but applied elsewhere.
Where a person has been arrested in relation to a criminal offence by an officer of UKBA and is being detained in a police station, that detention is regulated by the time scales provided in PACE and by the relevant codes of practice, to pick up on the point that was made earlier. The same procedure is followed by officers of HMRC and the police.
The amendment seeks to limit to five days the period for which a person may be detained by the agency under administrative arrangements in a police cell but not under criminal powers. Under the powers of the Immigration Act 1971, a person may be detained by a UKBA officer pending further examination, removal or deportation. The places where a person may be detained under these powers of detention are set out in the Immigration (Places of Detention) Direction 2009, made under section 18 of the 1971 Act, which include police stations. That direction already limits to five days the period for which a person may be detained in a police station under the border agencys administrative powers. That period may only be extended for a further two days if the person concerned is to be removed from the United Kingdom within that two-day period. The amendments proposed are, therefore, disproportionate. Paragraph (a) creates inconsistency with the existing PACE framework and, as a result, limits operational effectiveness without good cause. Paragraph (b) imposes a time scale for administrative detention that already exists in secondary legislation. Again, what we are doing here is transferring over what already exists. There may be arguments about that, but to change them within this clause would create inconsistencies across the agencies and would, therefore, be undesirable.

Damian Green: I thank the Minister for that very full and startlingly clear exposition of the PACE rules as they apply in these particular circumstances. I take his point about the inconsistency. What I was seeking to doand I think that I was successfulwas to provoke a full and proper discussion of the importance of the appropriate application of the PACE rules to new types of officers who now have quasi-police powers. We have seen what has happened with those powers, and seen the PACE safeguards being applied to immigration officers since the Immigration and Asylum Act 1999. Clearly, with greater numbers of officers having such powers in the future, it will be increasingly important that the protections are applied properly. I hope that the Minister accepts that questions remain over the appropriateness of allowing the Secretary of State to be the person who has the power to decide on whether or not to apply the safeguards. It may be that that is another imbalance in the system. With that significant caveat, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 22 ordered to stand part of the Bill.

Clause 23

Investigations and detention: England and Wales and Northern Ireland

Damian Green: I beg to move amendment 14, in clause 23, page 18, line 6, leave out subsection (5) and add
(5) A designated immigration officer or a designated customs official at a port in England, Wales or Northern Ireland may detain an individual if the immigration officer thinks that the individual
(a) may be liable to arrest by a constable under section 24(1), (2), or (3) of the Police and Criminal Evidence Act 1984 (c. 60) or Article 26(1), (2) or (3) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I., 1989/1341 (N.I. 12)), or
(b) is subject to a warrant for arrest.
(6) A designated immigration officer who detains an individual
(a) must arrange for a constable to attend as soon as is reasonably practicable;
(b) may search the individual for, and retain, anything that might be used to assist escape or to cause physical injury to the individual or another person;
(c) must retain anything found on a search which the immigration officer thinks may be evidence of the commission of an offence; and
(d) must, when the constable arrives, deliver to the constable the individual and anything retained on a search.
(7) A designated immigration officer may use reasonable force for the purpose of exercising a power under this section.
(8) Where an individual whom a designated immigration officer has detained or attempted to detain under this section leaves the port, a designated immigration officer may
(a) pursue the individual, and
(b) return the individual to the port.
(9) Detention under this section shall be treated as detention under the Immigration Act 1971 (c. 77) for the purposes of Part 8 of the Immigration and Asylum Act 1999 (c. 33)..
I am tremendously confident of a positive response from the Minister on this amendment because it comes word from word from his draft Bill, so I am not seeking to make the Government do anything that they did not want to do themselves last summer. No doubt had they had the legislative time, we would have been debating this with the Minister proposing it rather than me. Being always fair-minded in my opposition, I am sure that I would not have been proposing any amendments to it. The amendment fits very well with the existing Bill. Clearly, there were large parts of the draft Bill that are in other parts of the immigration field and would sit very strangely in this Bill. I believe that this amendment rounds off the existing clause rather effectively. It inserts a number of new sections, which describe why a designated immigration officer may detain an individual. It also sets out the rules about how the designated immigration officer should arrange for a constable to attend, carry out searches, retain any material taken and deliver to the constable what has been taken from the individual. It would allow reasonable force and allow the immigration officer to pursue the individual, and return the individual to the port.
Given that thousands more people will have those potential powers, it is important that we set out the rules regarding detention at port. Indeed, I am slightly surprised that that segment of the draft Bill did not survive, because it seems to fit very well with this part of the Bill and it fits seamlessly into clause 23, which is about immigration and detention. The amendment makes specific the debate that we have just had about the application of the PACE rules and safeguards. In themselves, they are very important, but it would make them more real and bring home as a practicality what we mean when we talk about a rigorous code of practice and conduct for officers at the border.
Even if we acceptwe never have donethe Minister saying that amendment 13 would introduce some inconsistencies into the application of the PACE rules, amendment 14 certainly would not. It sets out the sort of powers and protections that are available already in such legislation, so it genuinely would provide great confidence to those who have doubts about the appropriateness and powers of the protection that is available. These are specific. They would be in the Bill. People would know where they stood. They would know, first, the powers of the immigration officer, and secondly, the limits and constraints on those powers; both are perfectly admirable intentions of any such piece of legislation. As I said, I do not need to persuade the Minister. These would have been his words in other circumstances, so I hope that he can persuade himself that it is a good amendment.

Tom Brake: I am anticipating with joy and glee how the Minister will extricate himself from the amendment and explain it away, given that his Government proposed it. I believe that it sets out a useful blow-by-blow account of the steps that must be taken of a designated immigration officer who detains an individual. It is useful that such action is documented. The proposal seems sensible and it has a good pedigree, so I await the hon. Gentlemans reply with interest.

Phil Woolas: Despite the encouragement of my hon. Friend the Whip, I was hoping that the hon. Gentleman would speak for a few seconds longer, so that a specific answer could appear.
The hon. Gentleman is right. It is also pertinent that the 2007 Act already does what is proposed. Let me explain again what we are trying to do. It is to be taken in conjunction with clause 22, which we have just discussed. Clause 23 provides that the Secretary of State may, by order, apply any provision of PACE 1984 and PACE (Northern Ireland), which relates to the investigation of offences or the detention of persons by police officers to criminal investigations conducted or persons detained as part of an investigation by designated customs officials or immigration officers.
Clause 22, which we have just discussed, applies provision in the Revenue and Customs PACE Orders to criminal investigations conducted by designated customs officials relating to a general customs or customs revenue matterthe first being subject to the Secretary of States designation, the second being subject to the director of border revenues designation. That point answers the hon. Member for Ashford. The clause will also apply provision in the Revenue and Customs PACE Orders to persons detained by those officials in such criminal investigations.
That will enable the immediate application of the majority of the provisions of the Revenue and Customs PACE Orders to designated customs officials, including those officers of HM Revenue and Customs who have transferred to the UK Border Agency and who are, under the proceeds that we discussed earlier, so designated. That in turn will allow UKBAs designated customs officials to exercise the same powers in relation to customs matters at the border as those currently available to officers of HMRC. Equally importantly, that will ensure that when in future the agencys designated customs officials exercise those powers, they will be subject to the same safeguards as now and in the future, when they are exercised by officers of HMRC.
In due course, however, an order under clause 23 will be made to apply the provisions of PACE or PACE Northern Ireland, as the case may be, and the associated codes of practicethat is an important point to meet the worries of the hon. Member for Ashfordmore directly to designated customs officials, rather than relying on the glossing of the HMRC PACE Orders, for which clause 22 provides. Accordingly, clause 23(5) will enable an order made under the clause to amend or repeal clause 22.
In addition, in any order made under clause 23, we propose to address the position of immigration officers. Immigration officers do not at present use powers in PACE when conducting investigations, but they are required, when exercising powers in the context of a criminal investigation, to have regard to the relevant provision in a PACE code of practice. We have put that restriction on immigration officials. We will therefore use the order that we propose to make under clause 23 to specify those provisions of PACEor, as the case may be, PACE (Northern Ireland)and the associated codes of practice that will apply to any criminal investigation conducted by immigration officers, and to persons detained by those officers in connection with any such investigation. This order will replace section 145 of the Immigration and Asylum Act 1999 and replace the Immigration (PACE Codes of Practice) Direction 2000 and the Immigration (PACE Codes of Practice No. 2 and Amendment) Direction 2000 made under that section.
Clause 23 will confer all the powers and impose all the safeguards necessary to ensure the proper conduct by the UK Border Agency of its criminal investigationswhether in relation to customs or immigration offences. It will also provide a proper framework for the detention of persons where necessary in connection with those investigations. That is what we are attempting to do regarding clause 23.
The hon. Member for Ashford has put forward his amendments in good faith and with good spiritI readily concede that. The answer is that that clause, of course, was not the only one that was published in the draft Immigration and Citizenship Bill in July. It is an existing clause, which is a section of the UK Borders Act 2007 in relation to immigration orders, which is now covered by the point I have just made in relation to clause 23. In other words, I agree what the hon. Gentleman is trying to achieve, but my mechanism of getting there is already covered.

Damian Green: I am impressed by the ingenuity of the Ministers response. He almost tempts me to quarry the draft Bill for further things. The temptation is almost irresistible, but I promise the Committee that I shall resist. I accept his explanation and I hope that he is right. The underlying and extremely important issue is that people should have clear rules and know what they are, and that those rules should be completely clear about what immigration officers can do in terms of detention and enforcement. Everyone associated ought to know that. I accept the Ministers assurance that he is achieving that by other means, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 23 ordered to stand part of the Bill.

Clause 24 ordered to stand part of the Bill.

Clause 25

Short-term holding facilities

Question proposed, That the clause stand part of the Bill.

Tom Brake: I rise to confirm whether several issues to do with the clause on short-term facilities have been addressed. When the matter was discussed in the other place, there were concerns that the facilities could be used to hold people for in excess of seven days. I believe that the flow chart provided by Lord West of Spithead confirms that holding people in one of the short-term holding facilities for more than seven days is not possible. I hope that the Minister will confirm that to be the case.
Another concern was that the facilities were not designed to hold a mix of peoplevarious people, and under varying powers. How will the Minister respond to that concern? Has it been addressed? There was also concern that it was not clear what rules or guidance would apply in respect of the treatment and welfare of people held in such places, particularly if they were being held for differing reasons. I hope that the Minister can give some clarification on those concerns, which spilled over from the debate in the House of Lords.

Damian Green: I want to pick up one point made by the hon. Member for Carshalton and Wallington about the use of holding facilities. Can the Minister clarify at how many different ports and airports such facilities as could reasonably hold someone for up to seven days are available? I ask because I recently visited Dover, where there is a brand new suite of interviewing facilities. I am sure that the Minister has visited it as wellhe probably opened it. That suite is state of the art, but even Doverunless elsewhere in the portdid not appear to have the facilities to hold people for a long period. From my visits, I am conscious that one possibly could at Heathrow.
That would be useful to know, in particular in an era when we can expect that increasing numbers of those seeking to enter the country illegally, possibly serious criminals or even terrorists, will seek out routes into this country that are not the obvious onesnot the big ports and airports. Possibly, we shall need to have decent holding facilitiesboth secure and decent for people to be held inat more places than just the big, obvious airports or ports.
It would be helpful to the Committee to know what state we are in at the moment. Is it just Heathrowpossibly not even Doverwhere that can be done? Or are such facilities more widespread?

Phil Woolas: The answer is that they are more widespreadthere are approximately 30 short-term holding facilities in various ports and airports. They are used for the functions that the hon. Member for Ashford rightly described.
I can give the assurance that the hon. Member for Carshalton and Wallington sought. To explain briefly, clause 25 is linked to the provision that we have just discussed in some detail in clauses 22 and 23, to ensure the effective application of PACE and the codes of practice to the UK Border Agency. Clause 25 provides us with some flexibility in the future to use short-term holding facilities to detain arrested persons, in addition to those currently detained in such facilities under the administrative provisions of the immigration Acts. The rules covering those people detained under the immigration Acts will remain the same.
A short-term holding facility is defined in section 147 of the Immigration and Asylum Act 1999 as
a place used solely for the detention of detained persons for a period of not more than seven days or for such other period as may be prescribed.
Section 147 of the 1999 Act also defines detained persons as
persons detained or required to be detained under the 1971 [Immigration] Act or section 62 of the Nationality, Immigration and Asylum Act 2002.
Further provision in respect of who may be detained in a short-term holding facility was made in section 2(6) of the UK Borders Act 2007. The power in that section allows a designated immigration officer to detain at port for up to three hours any person who the officer thinks is subject to a warrant for arrest, or is otherwise liable to arrest by a policeman, pending the arrival of a constablethe point that was made before. That provision under the 2007 Act means that individuals detained for up to three hours under the section 2 power may be held for that period only in a short-term holding facility.
A short-term holding facility may therefore be used only to hold persons who have been detained under those administrative powers of immigration detention available to the UK Border Agency that I have mentioned. As part of our desire to maximise the use of the agencys detention and custody facilities, we wish to make more flexible use of the short-term holding facilities. To facilitate that, we propose in clause 25 that the definition be modified to allow such facilities to be used to hold individuals who have been detained other than under the existing administrative powers of immigration detention. Clause 25 achieves that by removing the word solely from the definition. A consequential provision is also made to the schedule of the Bill.
I stress that the modifications do not impact in any way on the treatment of persons held under the UK Border Agencys administrative powers of immigration detention. The modification we are seeking does not relate to immigration. The treatment of such persons will continue to be governed by the existing arrangements and the maximum periods that have been referred to.
The changes to the definition will simply allow the UK Border Agency and HM Revenue and Customs to use short-term holding facilities to detain persons following arrest, where that is in accordance with the provision we are making in relation to the application of PACE and the codes of practice. In other words, the short-term holding facilities could in future hold a range of individuals, subject to the prescribed period of detention relevant in each case, including individuals arrested on suspicion of committing an immigration or customs offence for up to six hours orwhere a short-term holding facility has been designated for the purposes of PACE as a place for detention longer than six hoursin accordance with the time limits prescribed by the so-called PACE clock. The provision could also cover individuals who are the subject of warrants for arrest, or who are otherwise liable to arrest by a police officer, who have been detained under section 2 of the UK Borders Act 2007 for a maximum of three hours, pending the arrival of a constable; and individuals who are subject to administrative immigration detention for no longer than five days, plus a further two days where it is proposed under removal directions set to remove the person concerned from the UK within that further period.
That is what we are trying to achieve. As I hope I have outlined, I can give the guarantees that the Committee is looking for.

Question put and agreed to.

Clause 25accordingly ordered to stand part of the Bill.

Clause 26

Transfer schemes



Amendment made: 26, in clause 26, page 20, line 7, leave out from means to end of line 8 and insert
a function which before the passing of this Act was exercisable by the Commissioners or officers of Revenue and Customs (whether or not it remains so exercisable) and that
(a) is conferred by or by virtue of this Part on the Secretary of State, the Director or a designated customs official, or
(b) is a function under Community law that is exercisable by the Secretary of State, the Director or a designated customs official;.(Mr. Woolas.)

This amendment provides that clause 26 (Transfer schemes) applies to things done by the Secretary of State, the Director or designated customs officials in connection with a relevant function as previously exercised by the Commissioners or an officer of Revenue and Customs, including things done under Community law.

Clause 26, as amended, ordered to stand part of the Bill.

Clause 27 ordered to stand part of the Bill.

Clause 28

Inspections by the Chief Inspector of the UK Border Agency

Phil Woolas: I beg to move amendment 27, in clause 28, page 21, line 5, at end insert , and
( ) after paragraph (g) insert
(ga) practice and procedure in relation to the prevention, detection and investigation of offences,
(gb) practice and procedure in relation to the conduct of criminal proceedings,
(gc) whether customs functions have been appropriately exercised by the Secretary of State and the Director of Border Revenue,..

This amendment, with amendment 28, requires the independent Chief Inspector to monitor and report on (i) UKBAs practice and procedure in relation to criminal matters, both immigration- and customs-related, and (ii) whether customs functions are being appropriately exercised by the Secretary of State and Director of Border Revenue.

Anne Begg: With this it will be convenient to discuss Government amendment 28.

Phil Woolas: These are technical amendments to meet the stated policy intention to extend the independent, external scrutiny provided by the chief inspector to the question whether the Secretary of State and the director of border revenue are exercising their customs functions appropriately.
As drafted, subsection (4) has the unintended consequence of confining the chief inspectors role to customs functions relating to offences and criminal proceedings. The amendments will ensure that the independent chief inspectors powers in that respect extend to the broad range of the Secretary of States general customs functions and the director of border revenues revenue customs function, which was the original intention.

Damian Green: Is it in order for me to speak to amendment 16, Miss Begg?

Anne Begg: No. I shall call that separately.

Damian Green: In that case, I shall simply say that I see the point of the Government amendments, and the logic of our amendment 16 sits very well with them. I hope that the Minister will be equally generous during the next debate.

Paul Rowen: The clause extends the functions of the chief inspector. Why does the regulatory impact assessment not contain anything about additional resources? Page 24 of the Home Affairs Committees fifth report states:
We have some concern that the additional responsibilities in this Bill will impose a significant extra burden on the Chief Inspector of the UK Border Agency, which is already a new post, and one whose capacity to oversee the whole of the UK Border Agency we have previously questioned. We agree with the Immigration Law Practitioners Association that the Chief Inspectors office may require a corresponding increase in resources to meet the additional burdens imposed by this Bill if his role is to be effective.
Given that nothing is said in the impact statement, is it the Governments intention to make available additional resources to carry out these powers?

Phil Woolas: I am grateful to the hon. Gentleman for raising that point, which, as he said, was raised by the Select Committee, the Chairman of which raised it with me personally and in correspondence.
The role of the independent chief inspector is a new one. He has just commenced his pilot inspections and has been made aware of the full planned scope of his role, as envisaged in the Bill. He published his inspection plans in April cognisant of that, and they take account of the proposed increased role. The then Home Secretary agreed the budget for 2009-10£3 millioncognisant of that plan. I concede that the inspectorate is new, and we have given a commitment to review that budget, subject to the financial restraints. We have worked the matter through with the inspector. However, the hon. Gentleman makes a strong point.

Amendment 27 agreed to.

Amendment made: 28, in clause 28, page 21, leave out lines 7 to 15.(Mr. Woolas.)

See Members explanatory statement for amendment 27.

Damian Green: I beg to move amendment 16, in clause 28, page 21, leave out lines 16 to 26.
As I have said, I appreciate what the Minister seeks to do with Government amendments 27 and 28. The Government have brought into being a new structure, with the chief inspector of the UK Border Agency, which is just beginning to get up and running and to do pilot inspections. The purpose of amendment 16 is to help the chief inspector and to streamline and make more efficient the inspection regime for the immigration detention estate. The role of the new chief inspector is an extremely important one, about which there was much discussion in the deliberations on the UK Borders Act 2007.
One anomalous thing that remains in the Bill is the multiple inspection regime that the agency and those who work in it will be forced to endure. There will be a chief inspector of prisons, Her Majestys inspectorate of constabulary and the new chief inspector of the UK Border Agency, all of whom, to some extent, will be trampling over the same ground. The Minister will be as aware as anyone that in the public sector, and probably in the private sector as well, one of the great complaints of the age is of over-inspection, particularly multiple inspection by different inspectorates that have slightly different demands. Schools and universities are the best examples of that I have come across. The measure will set up an equally intrusive inspection regime in which people at the sharp end of these jobs will feel two things very strongly. First, they will feel that they are never allowed to get on with their job because they spend their entire life either undergoing the current inspection or preparing for the next one. Secondly, they will feel that they are given different, sometimes contradictory, signals by different inspectors as to what they should seek to achieve.
This part of the Bill presents an opportunity to step back from that procedure for the UK Border Agency. With the current structure, with three powerful inspectorates looking at the UK Border Agency, I can guarantee that in a few years time it will complain that it is over-inspected and has to spend all its time looking over its shoulder rather than getting on with the job. I am fully prepared to be advised that the amendment is technically defective and does not achieve what I seek, but I hope that the Minister can at the very least agree with the general sentiment I express and take the amendment away to look at, and that we can return to this debate on Report. He is in danger of setting up a fairly monstrous and top-heavy system of inspection.
Of the three inspectorates that will operate in this field, the chief inspector of the UK Border Agency will be the least powerful, partly for historical reasons. We all know about HMIC and that the chief inspector of prisons has a hugely important job that is done extremely well and powerfully and very publicly, so a new inspectorate that is rather small because it is inspecting only one agency may be the least important of the three. There is something faintly perverse about a system where the least important inspectorate of the UK Border Agency is its own chief inspector. That is what I think the Minister is in danger of setting up. Therefore, for his sake as well as mine, and most of all for the sake of the UK Border Agency, I urge Ministers to take the matter away and look at it seriously. We can see, 50 yd down the track, the pit into which we will fall, so it might be a good idea to stop and cover that pit before we fall into it.

Phil Woolas: I am not trying to be too consensual, but may I say that the hon. Gentleman has a valid point? I hope that I can satisfy him about the approach that I am taking. I come to the issue with some record as the Minister for Local Government. I have tried to sort outmoderately successfully, I thinkthat very point of over-inspection, through providing for gateways, less inspection and having the right inspectorate for the right functions. That is also the approach that I have adopted in this regard.
Clause 28 must be taken on board with clause 29. What I am doing is what the hon. Gentleman is trying to achieve, in terms of having single inspectorates for functions, and not duplicating them. But I have done so in a slightly different way, which I think is preferableI am not seeking to score points for the potential difficulties with the drafting of his amendment.
Clause 28 will amend section 48 of the UK Borders Act 2007, which established the office of the chief inspector of the then border and immigration agency. That chief inspector provided an external review, independent of the agency and Department. Currently, the inspectors remit applies to immigration, asylum and nationality functions only. Clause 28 will evolve that function as set up under the 2007 Act, and will allow the chief inspector to look at the full range of functions that will be exercised by UKBA under the Bill. As well as immigration, asylum and national functions, the inspector will be able to monitor the exercise of general customs functions via the Secretary of State and her officials, including the designated general customs officials and the exercise of customs revenue functions by the director of border revenue and her designated officers.
Apart from evolving section 48 of the 2007 Act, the clause also specifies that
the chief inspector shall not monitor and report on
functions at detention facilities, short-term holding facilities or removal centres. There is a power for the Secretary of State to direct that, but I took that function outor rather, did not include itbecause they are areas where Her Majestys chief inspector of prisons, Her Majestys inspector of constabulary, the Scottish inspector and the Northern Ireland inspector should continue to have the primary oversight to ensure that that is being conducted by inspectors with the right experience. In other words, for the detention facilities and for areas such as the short-term facilities, the removal centres and the escort function, the HMIP will have oversight. Our inspector will, of course, have rights and powers to work with those people. If the Secretary of State wished for a specific investigationas sometimes the House calls forby that inspectorate, that will be possible.

David Hamilton: I do not wish to be unhelpful, but one of the things that concerns me is that we are talking about Her Majestys chief inspector of prisons and Her Majestys inspector of the constabulary. In Scotland, of course, they are responsible to the Scottish Parliament. How will the Minister balance that report? Will the report come down to this House, or will it go via the Scottish Parliament?

Phil Woolas: The inspectorate reports on the facilities of UKBA are for UKBA and therefore for this Parliament. There is the additional point I mentioned earlier that the Home Secretary has the power to direct the inspectorate of the UK Border Agency to look specifically at those facilities should he so decide.
Amendment 16 would have the effect of further extending the powers of the chief inspector of the agency to include monitoring and reporting on the holding facilities that I have listed, but it would not remove the responsibility of HM inspector of prisons for overseeing functions at the same facilities. I am not trying to score points. I accept the policy objective that there should be a single inspectorate. We believe that the inspectorate for detention facilities should include the people with the expertise, obviously allowing UKBA access to the reports and influence on them.
There is the further point, which I mentioned in the previous debate that, as we seek greater flexibility in the facilities, and as some facilities will not at all times be immigration-related, it makes sense to do this to provide reassurances. The fourth lock-in, of course, is the independent monitoring boards that are part of our structure.

Damian Green: I am grateful to the Minister for his explanation. He and I do not disagree about the dangers of over-inspection.
I am not entirely convinced by his position. I can see the logic of itthat there is expertise in HMIP, so HMIP should inspect detention facilities rather than the chief inspector of the UK Border Agencybut, in the end, detention and escort will be the flashpoints inside the agency in terms of inspection. That will be where inspection is most important.
It seems logical, if we want the agency to feel like a proper, coherent body that does the whole gamut of immigration control including, where necessary and at the extreme, detention, escort, deportation, removalall those kinds of thingsthat the inspection regime does not send a different signal. Depending on where an individual isthey may be moved around the agencythey will have different inspectorates looking over their shoulder. That seems slightly unsatisfactory and, in the long term, slightly incoherent.
I accept that in the short term we would want the expertise of HMIP in the detention estate, but expertise could be built up over time inside one inspectorate. I do not wish to divide the Committee on the amendment, but I am not entirely convinced by the solution that the Minister has come up with. I am glad that he recognises that this is clearly a problem that could affect the UK Border Agency in the future. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 28, as amended, ordered to stand part of the Bill.

Clause 29

Inspections by Her Majestys Inspectors of Constabulary etc.

Question proposed, That the clause stand part of the Bill.

Crispin Blunt: I want to follow up the arguments that have just been made by my hon. Friend the Member for Ashford and to invite the Minister to explain to the Committee what the powers will be used for. The clause takes powers to allow Her Majestys inspectors of constabulary to take their responsibilities to the agency. My hon. Friend described the potential problems that could come from an agency looking in several different directions, to different sets of inspectors.
Can the Minister explain to the Committee what will happen in practice? What powers will be exercised by the inspectors of constabulary that will not be exercised by the chief inspector of the UK Border Agency or, indeed, HMIP? The clause is clear about the role of the Comptroller and Auditor General.

Phil Woolas: I am grateful to the hon. Gentleman and to the hon. Member for Ashford. I acknowledge that it is a balanced argument. My judgment was that, because there was a specific function of detention within UKBA, the inspectorate that should look at that function should be the one that is familiar with detention rather than the institutional inspectorate, if I can put it that way. I will not persuade the hon. Gentleman on that pointI can tell that by his faceso I will answer the question.
As the hon. Gentleman knows, Her Majestys inspectorate of constabulary, the Scottish inspectors and the Northern Ireland inspectors carry out inspections of HMRC systems and procedures, including those in relation to HMRCs custody facilities. In the future, those facilities will be shared between HMRC and UKBA. Therefore, it is essential to adjust the inspection regime to allow for the continuation of suitable arrangements for oversight. Under the clause, the same estate takes power to make regulations to confer functions on Her Majestys inspectorate of constabulary, the Scottish inspectors and the Northern Ireland inspectors. That will enable the inspection of all immigration and customs work carried out on our behalf by UKBA.
Those regulations will establish the framework for commissioning and carrying out the relevant inspections. For example, they will provide for a report of any inspection to be made and, subject to any exceptions required or committed by the regulations, to be published, as well as for payment to be made, of course, to the inspectors.
These measures are designed, as are the other provisions in the clause dealing with inspection, to allow the continuation of existing oversight arrangements, but those arrangements will be adapted to reflect the provisions of part 1 of the Bill. So they do not represent a significant extension of existing roles. To answer the hon. Gentlemans specific question, the Bill also provides that inspections carried out in accordance with regulations made under the clause may not address matters that are the responsibility of the Comptroller and Auditor General under section 6 of the National Audit Act 1983 and for any inspection or part of an inspection that is carried out in Scotland to be

Crispin Blunt: I am grateful to the Minister for giving that explanation, some of which is found in the explanatory notes. However, I fear that I am not getting very much wiser about where the inspector of constabulary is going to work where the other inspectorates will not work. The Minister seems to have focused on detention facilities, where it would appear to be appropriate that Her Majestys inspectorate of prisons would normally be in the lead, but I am not clear as to when, in practice, the inspector of constabulary is going to be involved.

Phil Woolas: There are a number of functions that Her Majestys inspectorate of constabulary currently inspects, including customs detention facilities. The clause will enable the HMIC to carry on inspecting those functions. However, not all customs facilities are UKBA immigration and customs facilities; there are examples outside of those facilities. The explanatory notes do not go into detail on that issue, but that is the cover that we are trying to provide for ourselves.
For the record, I just want to point out that, as well as the exceptions for the Comptroller and Auditor General, there is the exception for any inspection or part of an inspection that is carried out in Scotland to be carried out jointly by HMIC and the Scottish inspectors.

Question put and agreed to.

Clause 29 ordered to stand part of the Bill.

Clause 30

Complaints and misconduct

Question proposed, That the clause stand part of the Bill.

Tom Brake: We tabled an amendment that unfortunately was a starred amendment, so it is not subject to debate here. However, I thought that I would use this opportunity to ask the Minister to clarify precisely what is being achieved in the clause. The explanatory notes suggest that, as a result of the clause
the IPCC may carry out investigations in relation to the exercise of specified immigration and asylum enforcement functions by contractors
I emphasise that word, contractors
and in relation to the exercise of customs functions by (a) designated customs officials and officials of the Secretary of State.
Am I right therefore that it will not be possible to make a complaint to the Independent Police Complaints Commission about immigration officials, as opposed to immigration contractors? If so, I hope the Minister will explain why that is the case. Are there circumstances in which a complaint could be made to the IPCC about the activities of immigration or customs officials outside the UK?

Phil Woolas: The hon. Gentleman did indeed table an amendment that gave me notice to provide background information, which I have in front of me. I thank him for raising the point.
I will outline the background to clause 30 in relation to the IPCC. Section 41 of the Police and Justice Act 2006 gives the Secretary of State the power to make regulations conferring functions on the IPCC in relation to the exercise by immigration officers and officials of the Secretary of State of specified enforcement functions that relate to immigration or asylum. Clause 30 will enable the Secretary of State to extend further the functions of the IPCC to inspect any contractual services provided in relation to the discharge of those enforcement functions. It may also investigate the exercise of the general customs functions by designated customs officials and officials of the Secretary of State; the exercise of customs revenue functions by the director and any person exercising those functions on his behalf, and; the provision of contractual services provided in relation to the discharge of any of those customs functions.
The clause is necessary to give the IPCC oversight of all immigration and asylum-related enforcement functions and the customs functions that will now be exercised by or on behalf of the UK Border Agency. It will also have oversight of contractual services provided in relation to the discharge of those functions. The IPCC already has an oversight role in respect of the exercise of customs functions by HMRC. The clause will ensure that it plays the same role when general and revenue customs functions become exercisable by the UK Border Agency. The purpose of the clause is the extension to contractors.
On a pragmatic, day-to-day basis, the UK Border Agency works hand in glove with the police. Many of our operations are carried out with the police and many of our functions are carried out with their co-operation. That is why, notwithstanding the point made in the previous debate, we think it right to extend this power in recognition of the reality on the ground.

Tom Brake: Can the Minister also respond to the query about whether it is possible to make a complaint to the IPCC in relation to something that happens when an agency is working abroad?

Phil Woolas: No, it is not. Our inspectorate covers the functions that are carried out by our people overseas, but complaints to the IPCC cannot be related to something that takes place overseas. That is outside its remit.

Question put and agreed to.

Clause 30 accordingly ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned.(Steve McCabe.)

Adjourned till Thursday 11 June at Nine oclock.